Citation Nr: 0405907
Decision Date: 03/04/04 Archive Date: 03/19/04
DOCKET NO. 97-31 986A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an increased evaluation for residuals of a
gunshot wound to the chest, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
B. P. Tierney, Counsel
INTRODUCTION
The veteran served on active duty from January 1946 to
December 1946. This matter comes to the Board of Veterans'
Appeals (Board) on appeal from a rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois, dated in June 1996.
The Board remanded the issue that is the subject of this
decision in October 2000 and June 2003. Review of the
actions performed by the RO reveal that the mandates of the
remands have been fulfilled. Stegall v. West, 11 Vet. App.
268 (1998).
FINDINGS OF FACT
1. The RO has provided all required notice and obtained all
relevant evidence necessary for an equitable disposition of
the veteran's appeal.
2. The residuals of the veteran's service-connected gunshot
wound to the chest are manifested by subjective complaints of
pain and dyspnea that are not supported by clinical evidence
including physical examination and pulmonary function
testing.
CONCLUSION OF LAW
The criteria for a rating in excess of 20 percent for
residuals of a gunshot wound to the chest have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.20, 4.72, 4.73 Diagnostic Code (DC) 5321, effective
prior to and since June 3, 1997, 4.97 DC 6818, effective
prior to October 7, 1996, 4.97 DC 6843, effective since
October 7, 1996, 4.118 DC 7804 effective prior to and since
August 30, 2002.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to Notify and Assist
As a preliminary matter, the Board finds that VA has
satisfied its duties to the veteran under the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002)); see also 38 C.F.R. § 3.159
(2003).
The Board finds that VA has satisfied its duties to notify
and assist the veteran under the VCAA with regard to his
claim of entitlement to an increased evaluation for residuals
of a gunshot wound to the chest, currently evaluated as 20
percent disabling. In a July 2003 statement, the veteran
reported that he did not have any additional evidence to
submit to support his claim.
By several documents the VA has notified the veteran of the
information and evidence needed to substantiate and complete
his claim, and of what part of that evidence was to be
provided by him and what part VA would attempt to obtain for
him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). In particular, the Board notes its two
previous remands in October 2000 and June 2003 noted the
specifics of several new rating criteria potentially
applicable to the veteran's claims, as well as the
particulars of the VCAA. The Board's remands in addition to
the original rating decision, the Statement of the Case and
subsequent Supplemental Statements of the Case specified what
evidence was currently of record and specified in what ways
the evidence submitted in support of the veteran's claims for
an increased rating failed to show entitlement to the benefit
claimed. Finally, a letter dated in July 2003 contained
language in effect advising the veteran to submit or identify
any evidence which he believed would help the RO decide his
claim. See Pelegrini v. Principi, 17 Vet. App. 412 (2004).
Here, the Board acknowledges that the letters, remands, SOC,
and SSOC's providing VCAA notice were provided to the veteran
long after the initial adjudication of his claim in June
1996. In a recent decision, the U.S. Court of Appeals for
Veterans Claims (Court) expressed the view that a claimant is
entitled to VCAA notice prior to initial adjudication of the
claim. Pelegrini, 17 Vet. App. at ___, slip op. at 8-9
(2004). In this case, however, it is obvious that the RO
could not have provided the VCAA notice prior to the initial
adjudication because that adjudication took place more than
three years prior to the enactment of the VCAA and the
promulgation of its implementing regulations.
Regardless, the Board finds that the veteran was not
prejudiced by the post-initial adjudication VCAA
notification. Throughout the course of this longstanding
appeal, the veteran has been repeatedly advised of the
evidence of record and the applicable rating criteria. He
has continued to submit or identify additional evidence in
support of his appeal and that evidence was duly considered
by the RO. Indeed, in an August 2003 Supplemental Statement
of the Case, the RO indicated that it had again reviewed the
veteran's claims folders in their entirety. Thus, the Board
finds that the veteran received the same benefit of the RO's
full consideration of the all the evidence of record, as he
would have received had he received the VCAA notice prior to
initial adjudication. Moreover, the Board notes that the
effective date of any award based on additional evidence
would have been fixed in accordance with the claim that was
the subject of the initial adjudication. 38 C.F.R.
§ 3.156(b) (2003) (new and material evidence received prior
to the expiration of the appeal period, or prior to the
appellate decision, if a timely appeal has been filed, will
be considered as having been filed with the claim, which was
pending at the beginning of the appeal period); see also
38 C.F.R. § 3.400(q)(1) (2003) (providing that when new and
material evidence is received within the appeal period, the
effective date will be set as if the prior denial had not
been made). For the reasons set forth above, the Board finds
that VA has fully satisfied its notification duties to the
veteran and that he has not been prejudiced by any post-
initial adjudication notification. Bernard v. Brown,
4 Vet. App. 384 (1993).
The Board finds that VA has also fulfilled its duty to assist
the veteran in obtaining evidence needed to substantiate his
claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)
(2003). Consistent with this duty, the Board remanded the
matter in October 2000 and June 2003 to obtain additional
records as well as VA examination reports. The RO has
complied with the Board's remand instructions. Stegall v.
West, 11 Vet. App. 268 (1998). It is also noted that the
veteran's service department medical records are on file, as
are relevant post-service clinical records. 38 U.S.C.A.
§ 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(1) - (3) (2003).
There is no indication of outstanding records, nor is there a
need for another VA medical opinion, given the thoroughness
of the examination reports recently obtained by the RO.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2003). For all the foregoing reasons, the Board concludes
that VA's duties to assist the veteran have also been
fulfilled.
Factual Background
The service medical records show that the veteran received a
wound from a 30-caliber rifle that penetrated the posterior
region of the thorax at approximately the level of the 6th
rib. It was noted that a foreign body was retained in the
left region of the diaphragm. Service connection was granted
in 1949 for gunshot wound residuals and the veteran was
assigned a 20 percent evaluation. In July 1949, on VA
examination, it was noted that the veteran complained of
aching in the posterior left chest and that X-rays showed no
damage to the chest structures. On examination, it was found
that the wound scar was healed, uncomplicated and without
disturbance of function as well as without any involvement of
any muscle groups. X-rays showed a foreign metallic body in
the lower anterior chest wall, uncomplicated. The examiner
also found that the veteran had a history of a through and
through wound of the left chest cavity, no X-ray or clinical
evidence of residual on examination.
On VA orthopedic examination in February 1992, the veteran
complained of increasing pain on the right side of his upper
trunk. The examiner noted a dime-sized scar on the left back
near the 10th rib. The entire left side of the veteran's
upper trunk was reported to be exquisitely sensitive and
painfully sensitive to very light touch. The diagnosis was,
status post bullet wound to the left chest with foreign
metallic body present in either the lower anterior chest wall
or upper quadrant of the abdomen. On VA neurological
examination that same month, it was reported that pinprick
was diminished in the margins of the scar in the left
posterior chest. It was stated that the veteran clearly
showed a functional description of paresthesia. The
diagnosis was, no neurological impairment found.
The veteran underwent a VA examination in June 1995. The
veteran complained of an inability to sleep on his chest or
back due to pain from the bullet. The veteran reported that
he could perform the functions of activities of daily living,
could walk a half-block, and then had to stop to steady
himself, and reported that his breathing when walking was all
right. Examination of the thorax showed normal curvature,
symmetric right and left. The muscles at the thorax were
intact, and there was no atrophy, herniation or adhesions. A
one-half inch by 0.2 inch scar of the posterior thorax was
noted on the left. Touching the skin of the upper body
caused flinching. The diagnosis was, status post gunshot
wound left thorax with residual foreign body, normal muscles,
and scar.
The veteran was next examined by VA in August 1995. He
complained of pain on movement of the thoracic and
lumbosacral spine for the past 10 years. He stated that he
could not sleep on his left side or on his back and that
sharp pains in the left side awakened him. He reported being
unable to sit with his back against the chair and must lean
to his right side. On examination, it was noted that the
lungs were clear to auscultation and that there was a 1 cm.
scar on the left posterior back with no pain on palpation, no
ulceration, and no swelling noted. X-rays were noted to show
no evidence of fracture or of bony destruction. Muscle
strength on the left was 4/5 and was 5/5 on the right. There
was no asymmetry of the back. Flexion of the spine was to 45
degrees and there was 15 degrees of rotation bilaterally,
with lateral bending to 20 degrees bilaterally. The
diagnosis was, lumbar spine spondylosis.
On VA pulmonary function testing in October 1995, the veteran
had an FVE 1 value of 59 % of predicted, and a DLCO of 81
percent. On a VA stress test in November 1995, the veteran
achieved a maximum predicted heart rate of 85%
In July 1996, on VA examination, the veteran complained of
discomfort in the left chest that was getting worse. He
stated that he could not sleep on the left side due to pain
and that he had trouble standing to put on his pants. It
was noted that X-rays of the thoracic spine in June 1995
showed degenerative arthritis, T-9 to T-12, and films of the
lumbar spine in 1993 showed degenerative changes. It was
reported that the cardiac stress was reviewed with another
physician and that it was determined that the diaphragmatic
attenuation was a normal variant. On examination, it was
stated that the veteran walked with a cane. It was stated
that the veteran had a 3/4 inch by 0.1 inch scar which was
tender to superficial touch over and around the scar. There
was flinching with pain. It was stated that there was no
muscle loss, no induration of muscles, no muscle hernia, and
symmetric tone. The examiner noted that there was no
scoliosis and that the veteran had tenderness in the
musculature of the spine in the left of the thoracic spine
near the wound entry site.
Flexion at the waist was noted to be to 75 degrees;
hyperextension was to 30 degrees; rotation was to 45 degrees
on the left and to 40 degrees on the right with a complaint
of pain. Lateral bending was to 35 degrees on the left and
to 30 degrees on the right with a complaint of pain. The
examiner stated that the veteran had muscle strain. Muscle
strength was 5/5 in the right upper extremity and 4/5 in the
left upper extremity; and handgrip was 4/5 on the left and on
the right. Sensation to pinprick was decreased on the left
upper extremity, arm, hand and fingers as well as in the
lower extremities, feet and toes, all on the left.
The examiner assessed that the veteran had a bullet in the
upper left quadrant of the abdomen, that the veteran had
muscle strain near the wound entry site; that he had
hyperesthesias of muscles on or near the entry site; and that
he had hyperesthesias of muscles on or near the left lower
extremity that was not secondary to the gunshot wound.
The examiner reported that the claims file had been reviewed.
The final diagnoses were: Muscle strain with hyperesthesia,
left posterior and lateral chest, symptomatic; gunshot wound
entry posterior thorax lodged left upper quadrant of the
abdomen; neuropathy left upper and left lower extremity
(unknown etiology): and degenerative changes thoracic and
lumbar spine.
VA again examined the veteran in June 1997. The veteran
complained of pain. It was noted that he took Tylenol #3
four times a day for pain, as well as other medication. It
was noted that the veteran was very guarded of his left side.
On palpation of the area, and touching the entrance wound,
the veteran jumped and indicated that it was painful to touch
that part of his skin. The examiner noted extreme tenderness
on examination. The examiner stated that the problem was one
of hypersensitivity or a neuropathy from the wound affecting
the pleural nerves. It was noted that his stress test was
normal. The diagnosis was, hypersensitivity neuropathy, left
side of chest, with moderate to severe symptoms secondary to
gunshot wound. A June 1997 VA PFT noted a poorly
reproducible effort, unable to read properly.
A VA pulmonary specialist also saw the veteran in
consultation. The veteran's primary complaint was pain of
the left chest, which he reported had been present for 50
years since a gunshot wound. The pain was said to impair his
ability to take a deep breath. The reports of chest X-rays
were said to indicate a foreign body in his abdomen without
major intrathoracic pathology. Spirometry done several
months earlier showed a mixed picture with both a restrictive
defect likely secondary to suboptimal effort secondary to
chest discomfort and a possible obstructive component
secondary to airways disease. The tracings showed a variable
effort with inconsistent results on multiple efforts. The
impression was history of gunshot wound to chest with chest
wall pain probably secondary to old trauma and possible
chronic obstructive pulmonary disease (COPD), not related to
gunshot wound.
VA next examined the veteran in November 1998. He reported
that he had pain and tenderness in his left side and was
unable to move that side or to sleep on that side due to
pain. The veteran stated that he could not walk without
becoming out of breath, that he had frequent colds, and that
he had to take naps during the day due to the pain. The
veteran reported that he never smoked in his life. On
examination, his lungs were clear both anterior and
posterior, with slight crackles in the left base. There were
no wheezes or rhonchi. The heart had a regular rate and
rhythm. The left breast was extremely tender to touch and
the veteran exhibited signs of discomfort on examination.
Examination of the posterior chest showed a scar about the
10th rib area that was well healed, nontender, and measured
approximately 2 cm where the bullet entered. PFT conducted
in conjunction with the examination showed an FEV-1 of 30
percent of predicted, and FEV1/FVC of 48 percent. The DLCO
was not obtained since the veteran was unable to perform the
test. The examiner noted that the PFT showed obstructive lung
disease. The diagnosis was COPD more likely than not due to
the occupation of bricklayer related to inhalation of dust
particles than to the bullet wound when he was in the
military.
The veteran was also treated in November 1998 by a VA
neurologist. His problems were noted to include left
thoracic neuropathic pain related to prior trauma, peripheral
neuropathy, poor balance related to neuropathy, epilepsy,
foot infection, and hypertension. His pain medications were
refilled.
In a June 2000 progress note for a hypertension follow-up,
the veteran described pain in his back, legs, knees, elbows,
and pain with numbness throughout both his hands and all his
fingers. He stated he had infrequent chest pain and
shortness of breath that he attributed to a gunshot wound and
lodged bullet in his left chest. The veteran's pain was
noted to appear to be arthritic in nature.
VA performed a series of medical examinations pursuant to the
mandate of the October 2000 Board remand.
The veteran underwent further PFTs in January 2001. The
examiner reviewed his claims folder. The veteran reported
DOE (dyspnea on exertion) that limited his ability to walk
more than a few feet. He could not sing in a choir. In
review of the veteran's records, the examiner noted that
several of the PFTs were inadequate because of poor veteran
effort. He was shot while in the service but required no
surgery for the injury. He worked in a brickyard, but denied
exposure to dust.
No abnormalities were found on physical examination. The
examiner noted that he was unable to interpret the PFTs
because of poor veteran effort. The veteran was also walked
while blood oxygen was measured with an oximeter. He was
unable to walk more than ten feet before he had to stop
because of complaints of dyspnea; however, during that time
his oxygen saturation was above 94 percent. Later, the
examiner noted he walked with the veteran to the waiting room
approximately 100 feet and the veteran did not have any
dyspnea.
The examiner noted that he was unable to objectively
demonstrate any significant pulmonary defect in the veteran.
The veteran's inability or unwillingness to perform PFTs made
it impossible to characterize the veteran's complaints
further. The examiner noted there seemed to be some
variability and inconsistency in the veteran's history and
examination.
The veteran was also given a VA orthopedic examination in
January 2001. He reviewed the veteran's claims folder and
noted the history of the veteran's gunshot wound and previous
treatment and examination reports. The veteran reported that
following service, lifting with his left arm caused left
chest pain, and he thus could not do heavy lifting. His
current history was that he did not sleep on his left side
because of pain, and he had difficulty using his left hand,
and raising his left shoulder since the injury in 1945. He
reported shortness of breath after walking one flight of
stairs or one half to one block. He stated that all
activities of daily living, dressing, and performing personal
hygiene were limited and accompanied by pain in his left
chest in that any movements to the left chest were painful.
Weather changes had no effect on his symptoms. The veteran
reported that use of his right arm also caused pain because
he of having to sleep on the right side.
The veteran's activities of daily living were rather minimal,
according to the veteran he did not get around much. The
examiner noted that it would be evident that any increases of
pain such that the veteran got during use of his arms did not
increase the level of debility. The examiner could not
determine if there was any additional loss of motion in any
joint when the veteran had a history of increased symptoms.
The examiner noted that it was evident from the service
record and the claims file that the veteran's injury was from
a small low velocity gunshot wound of small projectile that
entered posteriorly, did not exit, becoming lodged beneath
the left diaphragm. No surgical treatment was done. No
debridement was done. No infection occurred. There was no
evidence in the record or X-ray examinations to suggest any
explosive effect of the projectile and there were no
fractures associated with the projectile.
In reference to the veteran's spine specifically, the veteran
complained of general pain in the left thoracic area. It was
noted that prior records indicated degenerative arthritis in
the lumbar spine, and he had noted X-ray examination findings
suggestive of degenerative spur formation in the thoracic
spine, but in the right side and not on the left where the
gunshot wound occurred.
On physical examination, the veteran was noted to have a 1 cm
horizontal linear scar that was located 8.5 cm left of the
midline posteriorly and was about at the level of the 10th
rib. There was no evidence of subcutaneous scar formation or
adherence. There was no loss of intercostal muscle mass or
muscle tissue. The examiner concluded that it represented a
linear relatively small wound of entrance with no exit
wounds.
Light touch in the area of the scar and diffusely about the
entire left thorax, and even the right thorax, with
tenderness of light touch in the left paravertebral muscles
of the lumbar spine, the left lateral chest, and left
anterior chest, was present. The veteran withdrew from light
touch.
Range of motion of the thoracolumbar spine, as measured with
goniometer, revealed zero degrees of extension, 75 degrees of
flexion, 5 degrees of left lateral bend, and 15 degrees of
right lateral bend. There was complaint of pain on left
lateral bend, but there was no evidence of muscle spasm on
clinical examination and palpation. Further thoracic
rotation was 5 degrees to the right and 15 degrees to the
left.
Muscle strength in the thoracic spine could not be tested
because of the veteran's subjective complaints of pain. The
examiner noted that although there were complaints of pain
and loss of muscle function, there was no objective evidence
of muscle loss. The ranges of motion of the thoracic spine
were noted to be subjective in that they were in the complete
control of the veteran. The examiner could not state with
any degree of reasonable medical certainty that there was
added fatigability, weakness, or limitation of motion when
the veteran had subjective complaints of pain.
The examiner stated that he did not believe that the
veteran's limitation of motion and complaints of pain in the
shoulders was related to the gunshot wound. Nor did he
believe that the findings in reference to the left elbow were
related to the gunshot wound. He noted that the gunshot
wound affected the posterior chest wall only, and did not
affect the shoulder or the left elbow. He also did not
believe that the veteran's necessity of sleeping on his right
side caused right shoulder pain. In his experience as an
orthopedic surgeon, he had never found that to be true. The
examiner also found no muscle spasms in the thoracic spine
during thorax or thoracolumbar spine during motion.
In February 2001, a general medical examination was
performed. The veteran stated he had occasional shortness of
breath because of the gunshot wound. The examiner noted a
complete and thorough review of the veteran's claims folder.
The veteran was noted to have a history of COPD. This had
been attributed to the veteran's occupation as a bricklayer
and inhalation of dust particles because of that occupation.
On physical examination, the veteran exhibited marked facial
grimaces and reported he was unable to lift his left shoulder
above his head. Range of motion of the left shoulder was
abduction to 110 degrees with another attempt to 90 degrees.
It was observed that the veteran had no difficulty whatsoever
in taking his shirt on and off, and he would grab the chair
with his left arm without any seeming evidence of pain or
difficulty. The veteran was well muscled throughout the
shoulders and did not show any muscle wasting of the
shoulders, arms, thigh or leg.
The veteran reported that he had problems with his left side,
which he attributed to the gunshot wound. There was no
evidence of any muscle incoordination or muscle wasting.
With respect to the chest, there was a very faint scar over
the posterior aspect of the left chest wall. The scar was
not adherent to the skin. On palpation of the area, there
was no evidence of any growth or metallic objects. It was
extremely faint and did not appear to be disfiguring. The
veteran complained of pain over a very generalized area,
mostly below the area of the actual entrance wound. There
was no exit wound. He winced even before being touched below
that area. Above the area, although that was the area of
injury, he did not complain of any specific pain.
Previous pulmonary function tests were said to have shown
extreme deficits on pulmonary function testing. These were
not consistent with the veteran's physical findings on
auscultation with a stethoscope. The lungs were clear
bilaterally. There did not appear to be any respiratory
deficit. There were normal respirations at 18 at the time of
examination. The veteran did not appear to be out of breath
on walking from the waiting room to the examination room.
The veteran's physical appearance and respiratory examination
at the time of examination appeared to be inconsistent with
the previous pulmonary function tests as of 1998.
Recent chest X-ray examination was also said to not show any
significant pathology. There was incidentally noted a
metallic fragment in the left chest wall. Otherwise, there
did not appear to be any abnormality.
The diagnosis was gunshot wound to the chest with retained
metallic fragment. There did not appear to be any residual
effects of this initial injury. The veteran was able to work
on a regular basis as a bricklayer. It appeared that any
residual damage he had to his lungs in the form of COPD was
due to the occupational hazards of dust from that. His PFTs
were inconsistent with the physical examination, as well as
his description of left sided weakness is inconsistent with
an injury in that area. Muscle groups and muscle mass
appeared to be well toned and well muscled. His reports of
pain were inconsistent with physical findings.
In February 2001 a VA neurologist also examined the veteran.
He also noted his review of the veteran's claims folder and
outlined the history of the veteran's gunshot wound,
including prior treatment and examination reports.
On physical examination, there was a small scar, flat, non-
indurated, about one to two centimeters, round, in the left
lower posterior chest. Testing muscles on the left side, the
veteran grunted testing every muscle. Virtually all the
muscles on the left had collapsing type weakness (give away
weakness). He was grunting with testing his muscles in his
legs and his arms on the left side. He pulled his leg away
on testing muscles for unclear reasons.
The examiner noted that the veteran had numbness on the
entire left side from the veteran's face to at least the T10
level, which could not be explained by the small bullet
fragment left in the veteran's lower chest or upper abdomen
on the left side. The bullet fragment caused no structural
changes, and therefore would not be causing the neurological
symptoms found on examination. There was also an apparent
decrease in motion of the lumbar spine. The examiner
questioned the veteran's cooperation; however, the small
bullet fragment could not explain the decreased range of
motion.
VA most recently examined the veteran in reference to the
scar from his gunshot wound in August 2002. A color
photograph of the area of the scar has been attached to the
claims folder. The examiner noted the veteran's history of
shortness of breath whenever he attempted to sleep lying on
his back in bed and the need to sleep in a chair upright was
more consistent with postural dyspnea secondary to cardiac
disease than to cutaneous pain from a scar.
The veteran stated that he had severe pain in the soft tissue
around the bullet hole. He stated it had been that way since
1945. He rated the pain as an 8 or 9 on a scale of 1-10. He
stated it was sharp, lasted about 15 minutes and happened
eight to nine times a day. The examiner noted that the
veteran, due to his age and status, was a very poor
historian.
On physical examination, the veteran had an approximately 1
cm to 1.5 cm bullet hole scar that was noted in the left
posterior back. It was documented by radiograph. There
appeared to be no keloid formation. It was slightly
depressed and slightly darkened. It did not appear to be a
significant cosmetic deformity. Light touch over the area
caused the veteran to wince in pain. It was of note that
light touch above and below the scar at 1 inch, 4 inches, 6
inches, and 8 inches caused the same response. Therefore,
for test reliability the veteran was touched on the opposite
side of his back in a different dermatomal pattern and the
veteran had the same response. The examiner noted that it
would appear that the veteran's subjective complaints of pain
did not follow a specific dermatomal pattern.
The examiner concluded with a diagnosis of left posterior
thoracic bullet hole scar with subjective complaints of
discomfort not following a specific distribution. The
examiner noted that there was question of symptom
magnification.
Law and Regulation
Disability ratings are based on the average impairment of
earning capacity resulting from disability. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. § 4.1 (2003). The average
impairment as set forth in VA's Schedule for Rating
Disabilities, codified in 38 C.F.R. Part 4, includes
diagnostic codes which represent particular disabilities.
Generally, the degrees of disabilities specified are
considered adequate to compensate for a loss of working time
proportionate to the severity of the disability. Id. If an
unlisted condition is encountered it is rated under a closely
related disease or injury in which the functions affected,
the anatomical localization, and the symptomatology are
closely analogous. 38 C.F.R. § 4.20 (2003).
The determination of whether an increased evaluation is
warranted is to be based on review of the entire evidence of
record and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These
regulations include, but are not limited to, 38 C.F.R. § 4.1,
which requires that each disability be viewed in relation to
its history.
Although medical reports must be interpreted in light of the
whole recorded history, the primary concern in a claim for an
increased evaluation for a service-connected disability is
the present level of disability. Where entitlement to
compensation has already been established, and an increase in
the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown,
7 Vet. App. 55, 58 (1994).
The record before the Board contains service medical records
and post-service medical records, which will be addressed as
pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49
(2001) (a discussion of all evidence by the Board is not
required when the Board has supported its decision with
thorough reasons and bases regarding the relevant evidence).
In determining a rating for a disability, the Board may only
consider those factors that are included in the rating
criteria provided by regulations for rating that disability.
To do otherwise would be legal error as a matter of law.
Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v.
Derwinski, 2 Vet. App. 625, 628 (1992). As a result, the
Board will only address medical records insofar as they
pertain to the relevant rating criteria.
Once the evidence is assembled, the Secretary is responsible
for determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. Id.
Rating Criteria
The veteran's gunshot wound has historically been rated under
DC (DC) 6818 for residuals of pleural cavity injuries.
By regulatory amendment effective October 7, 1996,
substantive changes were made to the schedular criteria for
evaluating diseases of the respiratory system, as set forth
in 38 C.F.R. § 4.97. See 61 Fed. Reg. 46720-46731 (1996).
Therefore, adjudication of a claim of entitlement to a
compensable disability rating for the service-connected
residual scar must also include consideration of both the old
and the new criteria. The General Counsel of VA has held
that where a law or regulation changes during the pendency of
a claim for an increased rating, the Board should first
determine whether the revised version is more favorable to
the veteran. In so doing, it may be necessary for the Board
to apply both the former and revised versions of the
regulation. However, if the revised version of the
regulation is more favorable, the retroactive reach of that
regulation under 38 U.S.C.A. § 5110(g) can be no earlier than
the effective date of that change. See VAOPGCPREC 3-2000
(2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).
Prior to October 7, 1996, pleural cavity injuries such as
gunshot wounds were rated under DC 6818. A 20 percent rating
was warranted for a moderate injury, with bullet or missile
retained in lung, with pain or discomfort on exertion; or
with scattered rales or some limitation of excursion of
diaphragm or of lower chest expansion. A 40 percent rating
was warranted for a moderately-severe injury with pain in
chest and dyspnea on moderate exertion (exercise tolerance
test), adhesions of diaphragm, with excursions restricted,
moderate myocardial deficiency, and one or more of the
following: thickened pleura, restricted expansion of lower
chest, compensating contralateral emphysema, deformity of
chest, scoliosis, hemoptysis at intervals. A 60 percent
rating was warranted for a severe injury, with tachycardia,
dyspnea or cyanosis on slight exertion, adhesions of
diaphragm or pericardium with marked restriction of
excursion, or poor response to exercise. A 100 percent
rating was warranted when residuals were totally
incapacitating. 38 C.F.R. § 4.97, DC 6818.
A note associated with that diagnostic code indicates that
disability persists in penetrating chest wounds, with or
without retained missile, in proportion to interference with
respiration and circulation, which may become apparent after
slight exertion or only under extra stress. Records of
examination both before and after exertion, controlled with
fluoroscopic and proper blood pressure determination, are
essential for proper evaluation of disability. Exercise
tolerance tests should have regard to both dyspnea on
exertion and to continued acceleration of pulse rate beyond
physiological limits. Id.
In reviewing the requirements of DC 6818 for a rating greater
than 20 percent, the Board notes that the VA examiners have
found the veteran's gunshot wound does not produce any
pulmonary disability. Review of the examinations, routinely
shows findings of non-cooperation with the pulmonary function
tests or suboptimal effort. Examination of lungs is
generally without abnormality, although diagnoses of COPD
unrelated to the gunshot wound have been made. The Board
notes that the most recent VA examination in February 2001
demonstrated that the veteran's complaints of weakness and
dyspnea after walking ten feet were neither supported by
oximetry nor by the veteran's subsequent 100-foot walk to the
waiting room which was made without difficulty.
Additionally, on several occasions, the retained fragment has
been noted to be in the abdomen, sitting just below the
diaphragm, rather than the chest. This would indicate that
disability produced by the wound would be less likely to
impair pulmonary function.
Therefore, the Board finds the preponderance of the evidence
does not meet the criteria for a rating greater than 20
percent under the old DC 6818.
The new criteria deleted DC 6818, which were the criteria for
evaluating pleural cavity injury. The term "pleural cavity
injury" was reclassified as "traumatic chest wall defect,
pneumothorax, hernia, etc." and assigned DC number 6843.
Pleural cavity injuries and other disorders under DCs 6840
through 6845 are now evaluated under a general rating formula
for restrictive lung disease.
Under the new rating criteria, which were effective from
October 7, 1996, restrictive lung disease is primarily rated
according to the degree of impairment on pulmonary function
tests. A 10 percent rating is warranted where pulmonary
function testing reveal that FEV-1 is 71 to 80 percent
predicted; FEV-1/FVC is 71 to 80 percent; or where DLCO (SB)
is 66 to 80 percent predicted. A 30 percent rating is
warranted where pulmonary function testing reveal that FEV-1
is 56 to 70 percent predicted; FEV-1/FVC is 56 to 70 percent;
or where DLCO (SB) is 56 to 65 percent predicted. A 60
percent rating is warranted where pulmonary function testing
reveal that FEV-1 is 40 to 55 percent predicted; FEV-1/FVC is
40 to 55 percent; or where DLCO (SB) is 56 to 65 percent
predicted. 38 C.F.R. § 4.97, DC 6843 (1999).
A 100 percent rating is warranted where pulmonary function
testing reveals that FEV-1 is less than 40 percent predicted;
FEV-1/FVC is less than 40 percent; where DLCO (SB) is less
than 40 percent predicted; where maximum exercise capacity is
less than 15ml/kg/min oxygen consumption (with cardiac or
respiratory limitation); where there is cor pulmonale (right
heart failure); where there is right ventricular hypertrophy;
where there is pulmonary hypertension; (shown by echo or
cardiac catheterization); where there are episodes of acute
respiratory failure; or where outpatient oxygen therapy is
required. Id.
A note associated with DC 6845 states that gunshot wounds of
the pleural cavity with bullet or missile retained in the
lung, pain or discomfort on exertion, or with scattered rales
or some limitation of excursion of the diaphragm or of lower
chest expansion shall be rated at least 20 percent disabling.
The Board notes that this note is applicable to the veteran's
claim because it may be assumed that the site of the retained
fragment, just below the veteran's diaphragm causes some
limitation of excursion of the diaphragm. The veteran is
currently rated 20 percent disabling in accord with the note.
In considering the propriety of a rating greater than the
current 20 percent disability pursuant to new DC 6845, the
Board again finds the preponderance of the evidence against
the veteran's claim. The examiners have been unable to
obtain accurate spirometry data on repeated lung function
tests due to poor cooperation by the veteran. Notably, the
most recent examiner was unable to objectively demonstrate
any significant pulmonary defect in the veteran.
The new provisions of DC 6845 provide that disabling injuries
of shoulder girdle muscles (Muscle Groups I to IV) shall be
separately rated and combined with ratings for respiratory
involvement. The January and February 2001 VA examiners
clearly found that the disability in the veteran's left upper
extremity was unrelated to the veteran's gunshot wound.
The rating code provides that involvement of Muscle Group XXI
(DC 5321) will not be separately rated with DC 6845. DC 5321
is used for evaluation of injuries to Muscle Group XXI,
muscles of respiration (thoracic muscle group). It provides
a 20 percent rating for moderately severe or severe injuries.
This is the maximum rating for this diagnostic code under the
old and the new rating criteria. 38 C.F.R. Part 4, DC 5321.
Therefore, use of DC 5321 as an alternative would not yield
an increased rating for the veteran.
During the pendency of the case, the laws and regulations
concerning muscle injuries have also changed. Changes to the
regulations for evaluating muscle injuries were effective in
July 1997 and after being reviewed and compared with the
previous criteria are found to offer no substantive benefit.
62 Fed. Reg. 30235 (June 3, 1997). The revised regulations,
as finally issued, were consistent with VA's intention, as
expressed in the published proposal to amend, to condense and
clarify the regulations rather than substantively amend them.
See, 62 Fed. Reg. 30235 (June 3, 1997) and 58 Fed. Reg. 33235
(June 16, 1993). Therefore, viewed together, the newly
published criteria offer no substantive revision and are seen
as no more or less favorable to the appellant than the rating
provisions previously in effect. Karnas v. Derwinski,
1 Vet. App. 308, 311 (1991).
Under 38 C.F.R. § 4.56, concerning factors to be considered
in evaluating residuals of healed wounds involving muscle
groups, in effect prior to July 1997, the type of injury
envisioned by the regulations as causing "slight"
(insignificant) disability of muscles was a simple wound of
muscle without debridement, infection or effects of
laceration. The history and complaint includes service
department records of a wound of slight severity or
relatively brief treatment and return to duty; healing with
good functional results; and no consistent complaint of
cardinal symptoms of muscle injury or painful residuals.
Cardinal or principal symptoms include weakness, undue
fatigue-pain, and uncertainty or incoordination of movement.
Objective findings of slight disability included minimum
scar; slight, if any, evidence of fascial defect or of
atrophy or of impaired tonus; no significant impairment of
function and no retained metallic fragments. 38 C.F.R.
§§ 4.50, 4.56(a) (1996).
As revised effective in July 3, 1997, the type of injury
envisioned by the regulations as causing "slight"
(insignificant) disability of muscles is a simple wound of
muscle without debridement or infection. The history and
complaint includes service department record of a superficial
wound with brief treatment and return to duty; healing with
good functional results; and no cardinal signs or symptoms of
loss of power, weakness, undue fatigue-pain, and uncertainty
or incoordination of movement. Objective findings of slight
disability include minimum scar; no evidence of fascial
defect or of atrophy or of impaired tonus; no impairment of
function and no retained metallic fragments in muscle tissue.
38 C.F.R. §§ 4.50, 4.56 (2003).
Under the old regulation, disabilities classified as causing
"moderate" disability of muscles included a through and
through or deep penetrating wound of relatively short track
by a single bullet or small shell or shrapnel fragment.
History and complaint included evidence of hospitalization
for treatment of the wound, and objective findings included
signs of moderate loss of deep fasciae or muscle substance or
impairment of muscle tonus, and of definite weakness or
fatigue in comparative tests. 38 C.F.R § 4.56(b) (1996).
Under the revised regulation, disabilities classified as
causing "moderate" disability of muscles include a through
and through or deep penetrating wound of short track by a
single bullet or small shell or shrapnel fragment, without
explosive effect of high velocity missile, residuals of
debridement, or prolonged infection. History and complaint
includes service department record or in service treatment
for the wound; and consistent complaints of one or more of
the cardinal symptoms of loss of power, weakness, undue
fatigue-pain, and uncertainty or incoordination of movement
(in particular functions controlled by the injured muscles).
The objective findings should include entrance and (if
present) exit scars, small or linear, indicating short track
of missile through muscle tissue; some loss of deep fascia or
muscle substance or impairment of muscle tonus and loss of
power or lowered threshold of fatigue when compared to the
sound side. 38 C.F.R. § 4.56 (2003).
Under the old regulation, the type of injury causing
"moderately severe" disability normally resulted from a
through-and-through or deep penetrating wound by high
velocity missile of small size or large missile of low
velocity. Objective findings would include relatively large
entrance and (if present) exit scars, situated as to indicate
the track of missile through important muscle groups. There
would be indications on palpation of moderate loss of deep
fasciae, muscle substance, or normal firm resistance of
muscles compared with sound side. Tests of strength and
endurance of muscle groups involved (compared with the sound
side) would give positive evidence of marked or moderately
severe loss. 38 C.F.R. 4.56, 4.72 (1996).
Under the revised regulation, the type of injury noted by the
regulation as causing "moderately severe" disability
normally resulted from a through-and-through or deep
penetrating wound by high velocity missile of small size or
large missile of low velocity, with debridement, prolonged
infection, or sloughing of soft parts, and intermuscular
scarring. History and complaint includes service department
record or other evidence of hospitalization for prolonged
treatment of the wound, and consistent complaint of cardinal
symptoms of loss of power, weakness, undue fatigue-pain, and
uncertainty or incoordination of movement and, if present,
evidence of inability to keep up with work requirements.
Objective findings would include entrance and (if present)
exit scars, situated as to indicate the track of missile
through one or more muscle groups. There would be
indications on palpation of loss of deep fasciae, muscle
substance, or normal firm resistance of muscles compared with
sound side. Tests of strength and endurance of muscle groups
involved (compared with sound side) would give positive
evidence of impairment. 38 C.F.R. § 4.56 (2003).
As revised effective in July 3, 1997, 38 C.F.R. § 4.56
provides that an open comminuted fracture with muscle or
tendon damage will be rated as a severe injury of the muscle
group involved unless, for locations such as in the wrist or
over the tibia, or the evidence establishes that the muscle
damage is minimal. A through-and-through injury with muscle
damage shall be evaluated as no less than a moderate injury
for each group of muscles damaged. For VA rating purposes,
the cardinal signs and symptoms of muscle disability are loss
of power, weakness, lowered threshold of fatigue, fatigue-
pain, impairment of coordination and uncertainty of movement.
Under DCs 5301 through 5323, disabilities resulting from
muscle injuries shall be classified as slight, moderate,
moderately severe or severe.
Finally, the Board notes that the veteran's gunshot wound
also resulted in a scar. Under the anti-pyramiding provision
of 38 C.F.R. § 4.14, (2003), the evaluation of the "same
disability" or the "same manifestation" under various
diagnoses is to be avoided. The United States Court of
Veterans Appeals (Court) held, in Esteban v. Brown,
6 Vet. App. 259 (1994), that for purposes of determining
whether the appellant is entitled to separate ratings for
different problems or residuals of an injury, such that
separate evaluations do not violate the prohibition against
pyramiding, the critical element is that none of the
symptomatology for any one of the conditions is duplicative
of or overlapping with the symptomatology of the other two
conditions. The Board finds that a rating of the scar itself
would not violate the rule against pyramiding.
Before specifically addressing the question of whether a
compensable rating is warranted for the service-connected
residual scar on the left posterior chest, the Board
acknowledges that the schedular criteria by which skin
disorders are rated changed during the pendency of the
veteran's appeal. See 67 Fed. Reg. 49590-49599 (July 31,
2002) (effective August 30, 2002) codified at 38 C.F.R.
§ 4.118, DC 7806 (2003).
In this regard, the Board notes that, according to the
relevant rating criteria effective prior to August 30, 2002,
evidence that a superficial scar is tender and painful on
objective demonstration results in the assignment of a 10
percent disability rating. 38 C.F.R. § 4.118, DC 7804
(2002). This evaluation is the highest rating allowable
pursuant to this DC.
According to the pertinent rating requirements effective
since August 30, 2002, evidence that a superficial scar is
painful on examination warrants the grant of a 10 percent
disability rating. 38 C.F.R. § 4.118, DC 7804 (2003). A
superficial scar is one that is not associated with
underlying soft tissue damage. 38 C.F.R. § 4.118, Note 1
following DC 7804 (2003).
Review of the medical evidence shows that the entry wound
scar is well healed without associated pain. Examiners who
have evaluated the veteran's disability have uniformly found
that the exaggerated response to pain testing exhibited by
the veteran is not supported by objective clinical
observations. The Board finds that the veteran's subjective
complaints, as noted by the examiners are unsupported by
clinical evidence and inconsistent with the location of the
scar and disability that would likely be produced therefrom.
It is not consistent with a superficial scar that is tender
and painful on objective demonstration under the old
criteria, or painful on examination under the new criteria.
A preponderance of the evidence is against a compensable
rating for the scar alone.
In summary, the Board finds that the preponderance of the
evidence is against the veteran's claim that the residuals of
his gunshot wound warrant a disability rating in excess of 20
percent. The record does not reveal that the veteran's
gunshot wound is productive of any objective pulmonary,
neurologic, or muscular disability. The preponderance of the
medical evidence demonstrates that the disability noted upon
pulmonary testing is the result of poor effort or obstructive
lung disease rather than restrictive lung disease as would be
the case in residuals of a gunshot wound to the chest.
Likewise, the veteran is already rated at the maximum for a
disability of Muscle Group XXI affecting respiration.
There is no disability attributable to the residuals of the
gunshot wound that limit his activities, considered from the
point of view of working or seeking work, or in any way
impair his functions in his ordinary daily activities. See
38 C.F.R. §§ 4.1, 4.2, 4.10 (2003). Because the Board finds
that the preponderance of the evidence establishes that the
veteran's service-connected gunshot wound does not meet the
criteria, either old or new, for a rating greater than 20
percent, a higher rating is not warranted, and the reasonable
doubt doctrine is not for application. See 38 U.S.C.A.
§ 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
A rating greater than 20 percent for residuals of a gunshot
wound to the chest is denied.
____________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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